By Pete Thamel (New York Times)
December 1, 2011
When Bobby Davis sent an anonymous e-mail to Syracuse University in 2005, saying that the associate men's basketball coach Bernie Fine had molested him, the university asked its legal counsel to start an investigation.
The subsequent decision by the university and its counsel — Bond, Schoeneck & King — not to contact the Onondaga County district attorney's office and the Syracuse police department during its four-month investigation has drawn criticism from experts who handle sexual abuse cases. Jeffrey J. Mueller of the risk consultancy firm Granite Intelligence, who is a former assistant district attorney in Brooklyn, said it was "beyond egregious" that the university and the law firm did not consult with law enforcement.
"It's a shock to the conscience," Mueller said. "It begs the question, Why? What interests were served by not going to police or law enforcement. I can't think of any. Why would they not?"
The university and Bond, Schoeneck & King declined to comment on the situation, including questions on whether investigators who specialized in sexual abuse cases were used in the investigation.
Syracuse has now given the findings of the 2005 investigation to the district attorney's office, and the university's board of trustees has retained an "independent" law firm to look into its initial handling of the case. Federal law enforcement is also involved. William Fitzpatrick, the Onondaga County district attorney, said nothing in the report indicated that any of the lawyers involved in the inquiry had "an expertise in investigating sexual abuse."
"You would be hard pressed to say that the thing was investigated the way that it should have been in 2005," Fitzpatrick said. "As we all know, the complaining witness had an audio tape that corroborated a lot of what he has to say. I find it unusual that the kid didn't make it available. I didn't see anything in the report indicating he was asked."
The university has said it was told by Davis that the police had informed him the statute of limitations had run out on the crimes he was alleging. The university's internal investigation also did not reveal the existence of an audio recording that Davis, one of the three men who say they were abused by Fine, had already given to ESPN and The Post-Standard of Syracuse. The tape is of a conversation in 2003 between Davis and Fine's wife, Laurie, which includes her saying that her husband thought he was "above the law." On the tape, she does not deny Davis's intimations that Fine molested him.
"I think he did the things he did, but he's — somehow through his own mental telepathy — erased them out of his mind," Laurie Fine says on the tape. A nephew of Laurie Fine's told CNN this week that she said the tapes were "tampered with."
Syracuse's chancellor, Nancy Cantor, wrote in USA Today on Thursday that Syracuse would have fired Fine if the tape had become public in 2003, and that if it came up in the 2005 investigation, the university would have gone "straight to authorities." Cantor acknowledged that Syracuse could have "absolutely" done things differently in 2005.
Mueller, the former Brooklyn prosecutor, said a typical investigation into sexual assault accusations would have resulted in exhaustive interviews with personnel in the athletic department, a search of Fine's computer files and a comprehensive analysis of his travel and expenditures. All that the university has said about the 2005 investigation is that Davis and the people he said could have perhaps corroborated his story were interviewed. Davis did not respond to knocks on the door of his suburban Syracuse home Wednesday or to a note left seeking comment.
"Ethically, it would be incumbent on you to liaise with law enforcement," Mueller said.
Lisa M. Friel, who has 25 years of experience with sexual assault cases from her time with the Manhattan district attorney's office, agreed.
"What I think Syracuse or any other school in that situation needs is an independent investigation with people with the expertise in sexual abuse and sexual abuse of children," said Friel, the former chief of the sex crimes unit in Manhattan and now a vice president with T & M Protection Resources. "I don't know how you analyze this without that type of experience. It's hard to defend that you came to the right decision when you don't have the experts to do so."
Fitzpatrick, who is on the board of advisers of Coach Jim Boeheim's charity, said if his office had been made aware of the allegations in 2005, things would have been handled much differently.
Bond, Schoeneck & King is a corporate firm based in Syracuse. Its Overland Park, Kan., office is well known in the college sports world for representing universities that are facing N.C.A.A. investigations. Bond, Schoeneck & King represented Syracuse in the early 1990s after an investigation of the men's basketball program resulted in a one-year ban from the N.C.A.A. tournament. That case was the beginning of the firm's lucrative practice of representing universities in trouble with the N.C.A.A.
Bond, Schoeneck & King is also Syracuse University's legal counsel, with the lawyer Thomas Evans serving as senior vice president and general counsel for the university. Evans is a member of Cantor's cabinet.
"They've got a great reputation and are staffed by wonderful people," Fitzpatrick said of the firm. "But if you're having a heart attack, you go to the emergency room. If there's allegations of sexual abuse, you should contact the district attorney's office."
One former associate dean said it was not the first time that an internal investigation by the university involving athletics had been questioned.
In 2007, three Syracuse basketball players were accused of sexual assault by a female student. David Potter, a former associate dean in the College of Arts and Sciences who helped the student through the process, described attempts to get her a university judicial hearing as arduous and exhaustive. Ultimately, Potter needed to meet with Cantor and Evans to schedule the hearing. Eventually, the players were cleared of the charges but found responsible for behavior "that threatened the mental health" of the woman.
On Nov. 16, the day before the allegations against Fine became public, Potter wrote a letter to the student newspaper, The Daily Orange, saying that Syracuse's reputation could not "withstand an independent outside investigation of some of the decisions and actions of its most senior administrators without suffering the kind of damage Penn State is now experiencing."
Potter said his experience with the administration in the case involving the basketball players left him wary of Syracuse's internal workings.
"I have very little confidence in them handling a matter like this internally, as I worry that they would have mixed motives in attempting to carry something like that out," Potter said of the 2005 internal investigation. He added: "That's why I feel some ray of hope with U.S. attorney's office and Secret Service involved. We're getting away from this sort of incestuous stuff that goes on around here all the time."
Zach Schonbrun contributed reporting.